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EXHIBIT 2
AMENDMENT NO. 1 TO
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
BY AND AMONG WAVEPHORE, INC., WAVEPHORE NEWSCAST, INC., PARACEL ONLINE
SYSTEMS, INC. AND PARACEL, INC.
This AMENDMENT NO. 1 TO AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS dated May
29, 1997 (the "Agreement") is made and entered into this 12th day of January,
1998 among WavePhore, Inc., an Indiana corporation ("WavePhore"), WavePhore
Newscast, Inc., a Delaware corporation ("Newscast"), Paracel Online Systems,
Inc., a California corporation ("Seller") and Paracel, Inc., a California
corporation ("Shareholder").
RECITALS
WHEREAS, WavePhore, Newscast, Seller and Shareholder desire to amend certain of
the terms and conditions of the Agreement, as set forth herein;
NOW, THEREFORE, in consideration of the covenants and mutual agreements set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereby agree as
follows:
1. AMENDMENT TO SECTION 2.6(a) OF THE AGREEMENT.
Section 2.6(a) of the Agreement hereby is amended by deleting the original text
of Section 2.6(a) in its entirety and replacing it with a new Section 2.6(a),
the text of which is as follows:
"2.6(a) First Incentive Payment. On January 12, 1998 or as soon thereafter
as is practicable, WavePhore Newscast shall deliver to Seller the First
Incentive Payment in the amount of $4,200,000, payable in an amount of
WavePhore Common Stock (the "Shares") based upon the Average Market Price
of WavePhore Common Stock ending the last Trading Day prior to January
12,1998. WavePhore shall register all the Shares for resale by Seller
and/or Shareholder (collectively, the "Selling Security Holder") pursuant
to an SEC Registration Statement (the "Registration Statement") in
accordance with the provisions of Section 2.9(a),(b),(c),(d) and (e) of
the Agreement. All sales of the Shares by the Selling Security Holder
pursuant to the Registration Statement shall be made in an orderly manner
and in an amount (the "Volume Limitation") which shall not exceed on any
Trading Day the greater of (i) 20,000 Shares, or (ii) 10% of the Trading
Volume of WavePhore Common Stock on the previous Trading Day; provided
that with the prior consent of WavePhore the foregoing Volume Limitation
shall not apply to negotiated block trades executed at prices equal to or
greater than the Average Market Price of WavePhore Common Stock ending the
last Trading Day prior to January 12,1998. For purposes hereof " Trading
Volume" shall include all trades reported to the National Association of
Securities Dealers, Inc. or otherwise to a "consolidated system" as that
term is defined in the Securities Exchange of 1934, as amended, and
"Trading Day" shall mean any day on which at least 20,000 shares of
WavePhore Common Stock are traded on the Nasdaq National Market or on the
principal securities exchange or market on which WavePhore Common Stock is
then traded and such Market or exchange remains open for at
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least one continuous hour on such day.
If the Sum of (i) the total net proceeds (gross proceeds less direct
selling costs) received by the Selling Security Holder from the sale of
the Shares during the period commencing on the effective date of the
Registration Statement and ending on April 30, 1998 (the "Sale Period"),
plus (ii) the market value of all unsold Shares held by the Selling
Security Holder as of the close of trading on the last Trading Day of the
Sale Period, valued at the closing price of WavePhore Common Stock as of
such date, is less than $4,000,000, WavePhore and Newscast shall pay to
the Selling Security Holder the difference between $4,000,000 and such Sum
(the "Difference") in immediately available funds on the third business
day following the close of the Sale Period.
Provided, however, that if the total number of Trading Days on which the
Registration Statement is effective during the Sale Period (the "Available
Trading Days") is less than 30 days, then the Sale Period shall be
extended for an additional number of Trading Days equal to the difference
between 30 and the number of available Trading Days.
Upon payment of the Difference, if any, by WavePhore and Newscast to
Selling Security Holder, WavePhore and Newscast shall have no other or
further liability or obligation with respect to the delivery of the First
Incentive Payment or the Shares."
2. APPLICATION OF SECTION 2.9(f) OF THE AGREEMENT.
The first sentence of Section 2.9(f) of the Agreement shall not apply to
amended Section 2.6(a) of the Agreement. In addition, any payment required
by the second sentence of Section 2.9(f) with respect to the First
Incentive Payment described in Amended Section 2.6(a) shall be limited to
a maximum of $4,000,000.
3. NO OTHER CHANGE.
No other change or modification to the Agreement is intended or implied.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, as of the date set forth above.
WAVEPHORE, INC. PARACEL ONLINE SYSTEMS, INC.
By: ______________________________ By: ____________________________
Xxxxx X. Xxxxx, Chairman, Xxxxx- I Yu, President
Chief Executive Officer and President
WAVEPHORE NEWSCAST, INC PARACEL, INC.
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By: _______________________________ By: ____________________________
Xxxxx X. Xxxxx, Chairman, Xxxxx- I Yu, President
Chief Executive Officer and President
